[Federal Register Volume 75, Number 235 (Wednesday, December 8, 2010)]
[Rules and Regulations]
[Pages 76263-76274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30525]
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DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 541
[Docket No. BOP-1118-F]
RIN 1120-AB18
Inmate Discipline Program/Special Housing Units: Subpart Revision
and Clarification
AGENCY: Bureau of Prisons, Justice.
ACTION: Final rule.
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SUMMARY: In this document, the Bureau of Prisons (Bureau) amends its
Inmate Discipline and Special Housing Unit (SHU) regulations. We intend
this amendment to streamline and clarify these regulations, eliminating
unnecessary text and obsolete language, and removing internal agency
procedures that need not be in regulations text. We also make
substantive changes to our list of prohibited acts for which
disciplinary sanctions may be imposed, and alter the list of possible
sanctions available to allow Discipline Hearing Officers more
flexibility in adapting the sanction to fit the seriousness of the
violation.
DATES: This rule is effective on March 1, 2011.
ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons,
320 First Street, NW., Washington, DC 20534.
FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General
Counsel, Bureau of Prisons, phone (202) 307-2105.
SUPPLEMENTARY INFORMATION: The Bureau amends its inmate discipline and
special housing unit (SHU) regulations (28 CFR part 541, subpart A and
subpart B) to streamline and clarify these regulations, eliminating
unnecessary text and obsolete language, and removing internal agency
procedures that need not be in regulations text. The proposed
regulation contained a detailed section-by-section analysis (published
on July
[[Page 76264]]
26, 2005, at 70 FR 43093). This regulation finalizes the proposed
regulation with only minor changes. We received only four comments
containing several similar issues. We address the issues raised by the
commenters below.
Comment: It is unlawful to require DNA testing while in Bureau
custody. One commenter, an inmate, stated that he has a Court order to
submit to a non-invasive DNA test as directed by a probation officer
upon release, and therefore believes it is unlawful to ``require'' him
to submit to DNA testing while in the Bureau's custody under prohibited
act code 227 (Refusing to participate in a required physical test or
examination unrelated to testing for drug abuse).
Bureau Response: The high severity level prohibited act code for
refusing to participate in a required physical test or examination
unrelated to testing for drug abuse (e.g., DNA, HIV, tuberculosis) is
necessary to comply with Federal law. On December 19, 2000, Congress
enacted Public Law 106-546, commonly referred to as the DNA Analysis
Backlog Elimination Act of 2000 (Act). This Act requires the Bureau to
collect DNA samples from individuals convicted of qualifying Federal,
military, or DC Code offenses. The FBI is required to analyze the
samples and maintain the information in the Combined DNA Index System
(CODIS). Although this commenter and other inmates may have court
orders requiring such testing upon their release, these court orders
are not inconsistent with the Bureau's authority to conduct testing
during incarceration. Because we are required to do this by statute, we
need to have the specific capability to discipline inmates who
jeopardize the Bureau's compliance with the statute.
Comment: Code 296 could result in lawsuits for infringement of the
6th Amendment right of access to the courts. Another inmate complained
that defective copying machines at her institution resulted in staff
making copies of legal material for inmates on a staff copier only at
times convenient for staff. The inmate then complained that she was
therefore ``forced'' to send originals to a legal assistant to copy and
file, violating code 296 (sending correspondence to an address with
directions to have the correspondence sent to an unauthorized person).
She concluded that code 296 should therefore exclude legal material.
Bureau Response: We do not intend to impede inmates' Constitutional
right to access courts. Code 296 is intended to sanction inmate
behavior designed to circumvent inmate correspondence regulations and
policy. It will be used to deter correspondence with unauthorized
individuals and to prohibit illegal activity. 28 CFR 540.19(d) also
allows for inmates to send ``legal correspondence'' to legal
assistants. Inmates must clearly mark the envelope as ``legal mail.''
If inmates encounter a problem with sending legal mail to their
attorneys, they should file an administrative remedy complaint
according to procedures in 28 CFR part 542.
Comment: Distinction should be drawn between violation of 334
(Conducting a business) and management of pre-existing assets by a
designated representative, which is allowed under the regulations. Some
commenters were concerned that staff may not understand this
distinction, and wanted more details about this code.
Bureau response: In response to this commenter, we have amended
this code to clarify that inmate activities related to conducting a
business that are authorized by staff, such as those the commenter
refers to, will not violate the prohibited act code. We revise this
code to prohibit only ``Conducting a business; conducting or directing
an investment transaction without staff authorization.''
Also, in corresponding policy guidance to staff, the Bureau will
ensure that staff are aware of the distinction between violation of
this prohibited act code and management of pre-existing assets by a
designated representative. Staff are currently aware that inmates are
permitted limited opportunities to protect personal assets (see 28 CFR
540.14(d)(4)) or engage in an approved special visit for the purpose of
addressing a business matter (see 28 CFR 540.45(a)).
Comment: Codes 199, 299, 399 and 499 (``Conduct most like'' codes)
are too vague.
Bureau response: The Bureau gives guidance to its Discipline
Hearing Officers (DHOs) that they are to use this charge only when
another charge of the same severity level is not applicable. These
codes, along with codes 198, 298, 398 and 498 (Conduct which disrupts
or interferes with the security or orderly running of the institution
or the Bureau of Prisons most like another prohibited act in the same
severity level) give the Bureau flexibility to address unique
situations.
Currently, the DHO or Unit Disciplinary Committee (UDC) must
indicate in its findings a specific finding of the severity level of
the conduct and a comparison to the offense in that severity level
which the DHO/UDC finds is most comparable. Therefore, whenever these
codes are used, reference will be made to another code which is most
like the inmate's present problematic conduct, making the DHO/UDC
finding as specific as possible.
Also, courts have consistently upheld this type of prison
regulation, particularly where the act committed is similar to a
specifically defined prohibited act. See Landman v. Royster, 333
F.Supp. 621, 655-56 (E.D.Va.1971) (For prisoners, ``the law requires
less in the way of notice, and places a greater burden on the
individual to make inquiry or ask permission before acting.''); Meyers
v. Allderedge, 492 F.2d 296, 309 (3rd Cir. 1974) (``It is nearly
impossible for prison authorities to anticipate, through a narrowly
drawn regulation, every conceivable form of misconduct which threatens
prison security.''); Schenck v. Edwards, 921 F. Supp 679 (E.D. Wash
1996) (``One cannot realistically expect prison officials to make and
be bound by an exclusive list of every item constituting contraband.
Prison officials must have some flexibility to address situations as
they arise.''). See also Coffman v. Trickey, 884 F.2d 1057 (8th Cir.
1989), in which an inmate was charged with violating a prohibition on
violating a published rule. The court found that because prison
officials could not point to which rule the inmate actually violated,
there was insufficient notice to the inmate of the prohibited act and
therefore a violation of due process. As mentioned above, however, DHOs
do not use prohibited act codes 199, 299, 399, or 499 without referring
to another code which is most like the inmate's present problematic
conduct.
Comment: It is unfair to impose monetary fines. One commenter was
concerned about what happens if a monetary fine is not paid. That
commenter opined that monetary fines are discriminatory and arbitrary
in that inmates don't have the ability to pay and those that do have an
advantage.
Bureau response: We made this change to provide DHOs with the
flexibility to sanction inmates by imposing monetary fines as a
punishment and deterrent to committing prohibited acts. Additionally,
by providing another sanctioning option, DHOs are better able to tailor
the discipline of individual inmates in a manner best suited to affect
behavioral changes.
We also clarify that the sanctions of ``make monetary restitution''
and ``monetary fine'' may only be imposed by DHOs after providing the
inmate with due process procedures. DHOs will have the benefit of
seeing the total circumstances and situation of the
[[Page 76265]]
inmate, and if, for example, the inmate is indigent, the DHO may choose
instead to impose a different sanction. DHOs are trained to sanction
effectively based on each inmate's circumstances and the punitive value
of the sanction for that particular inmate.
If a monetary fine imposed as a sanction by a DHO is not paid, the
DHO will have the authority to order that the amount of the fine be
``frozen'' in that inmate's deposit fund account so that the amount of
the fine would not be available for spending by the inmate. Non-payment
of a fine is not a prohibited act and will not be a factor for an
inmate's placement or continuation in SHU.
Comment: Forfeiture of good time is unfair. One commenter states
that, before 1996, there was no forfeiture of good time, or good time
could be recouped. The commenter wrote: ``Is it not discriminatory if
those inmates who were sentenced before 1996 must now face additional
punishments that were not part of the scheme when they were originally
sentenced?''
Bureau response: The sanction of forfeiture of good conduct time
appeared in the previous regulations. We do not intend to alter its
application through this rulemaking. Under previous regulations, which
will be incorporated into the Bureau's Inmate Discipline policy, an
inmate sentenced under the Sentencing Reform Act provisions of the
Comprehensive Crime Control Act (committed his or her crime on or after
November 1, 1987) may not receive statutory good time, but is eligible
to receive 54 days good conduct time credit each year (18 U.S.C.
3624(b)). Once awarded, the credit is vested, and may not be
disallowed.
However for crimes committed on or after September 13, 1994, and
before April 26, 1996, credit toward an inmate's service of sentence
will not vest unless the inmate has earned or is making satisfactory
progress toward a high school diploma or an equivalent degree, or has
been exempted from participation because of a learning disability or
other status.
In imposing this sanction, the DHO will consider the severity of
the prohibited act and the suggested disallowance guidelines in making
a determination to disallow good conduct time in a non-discriminatory
fashion. Disallowance of good conduct time is not an ``additional
punishment.''
Comment: The increased disciplinary segregation sanction time is
unfair. One commenter believed that increasing the amount of time an
inmate can potentially be placed in disciplinary segregation status as
a sanction has a ``deleterious effect on inmates and puts the inmate in
jeopardy of permanent psychological damage.'' The commenter recommended
that these increases be available only for ``new criminal behavior and
not for incident reports that are minor in nature.''
Bureau response: This change allows us to more effectively
discipline and more accurately reflects the serious nature of all of
the prohibited acts. There are several reasons that this time frame was
chosen for the maximum amount of disciplinary segregation:
Current disciplinary segregation (DS) sanctions have been in place
since January 5, 1988. In the past 16 years, the inmate population has
increased dramatically, most recently to include DC Code felony
offenders. Likewise, because the population has also changed
dramatically, the nature and severity of prohibited acts committed has
intensified.
Specifically, the Bureau has seen an increase in offenses related
to gang-related activity, firearms, and drugs. Also, Federal offenses
have expanded to include use of firearms, new drug-related offenses,
conspiracies, and higher penalties for homicides.
In addition, because sentence length has generally increased, the
current sanctions of 60-90 days of disciplinary segregation accounts
for a much smaller percentage of the typical sentence. Therefore,
current DS sanctions no longer effectively function as a deterrent. We
increase this sanction to reflect the needs and the nature of the
changing and expanding inmate population.
Under the current disciplinary regulations, approximately 16% of
inmates committing prohibited acts were repeat offenders who were
sanctioned to the maximum amount of disciplinary segregation sanction
multiple times, resulting in 12 months or more of total disciplinary
segregation time. Again, the current maximum DS sanction is not
functioning as an effective deterrent. Finally, it is important to note
that this regulation increases the maximum amount of the disciplinary
segregation sanction available to DHOs. DHOs will only impose the
maximum amount of disciplinary segregation in the most egregious
circumstances for the most serious offenses.
Also, with regard to the commenter's concern about the
psychological effects on inmates placed in SHU, we note that Sec.
541.32 requires health services staff to visit inmates in SHU daily to
provide necessary medical care. That regulation also indicates that,
after every 30 calendar days of continuous placement in SHU, mental
health staff will examine the inmate, including a personal interview.
Emergency medical and mental health care is always available.
Comment: Special Housing Unit (SHU) conditions are substandard. Two
commenters complained about SHU conditions, and one opined that inmates
in Administrative Detention (AD) status should have the same amenities
as those in general population status. Specifically, the commenter
believes that ``AD food should be the same as that provided in general
population,'' ``AD inmates should be allowed the same amount of
personal property as permitted for inmates in general population,'' and
``AD inmates should not have telephone calls limited.''
Bureau response: With regard to the commenters concerns about sub-
standard conditions in Special Housing Units (SHU) for inmates in
Administrative Detention or Disciplinary Segregation status, the
Bureau's policies for conditions in SHU continue to exist and are
applicable nationwide to ensure uniformity.
Also, Sec. 541.31 provides that conditions in SHU will ``meet or
exceed standards for healthy and humane treatment,'' and subsection (d)
provides that food will be nutritionally adequate. The staff-inmate
ratio and other unique circumstances of each institution may render it
impractical to have food provided to inmates in SHU be exactly the same
as that provided in general population.
With regard to personal property, subsection (h) provides that
personal property may be limited for reasons of fire safety or
sanitation, but that inmates in AD status will ordinarily be allowed a
reasonable amount of personal property and access to the commissary.
Inmates in DS status have been placed there as a disciplinary sanction,
will have their personal property impounded, with the exception of
limited reading/writing materials, and religious articles, and their
commissary privileges may be limited. These provisions regarding
personal property are not substantively different from the previous
regulation or its application.
Telephone calls will be allowed in accordance with 28 CFR part 540,
subpart I. Inmates in AD status may have telephone calls limited by the
staff-inmate ratio and unique circumstances of that institution. For
example, staff may not be available at all times to provide an AD
inmate with access to a telephone and may, therefore, have to schedule
times to place calls. However, inmates in AD status will have telephone
privileges consistent with the
[[Page 76266]]
available resources and security needs of the institution.
Comment: Inmates should be allowed to attend the 3-day review of
their placement in AD, and staff information relevant to the AD
placement should be presented then.
Bureau response: Section 541.26 states that a Segregation Review
Officer (SRO) will review supporting records within three work days of
an inmate's placement in administrative detention (AD) status. This is
a paper-review by the SRO, not a hearing that can be attended by the
inmate. The inmate has an opportunity to attend a formal review hearing
both within seven days of placement in AD status and every thirty days
thereafter.
Comment: Table 4 (Sanctions) should not be eliminated because it
provides directions for DHOs and without it, DHOs will not follow these
processes.
Bureau response: The table describing how DHOs are to impose
sanctions will not be eliminated, but rather moved from Federal
regulations language to Bureau policy implementing text. It will
continue to exist as instruction to staff in the Bureau's Inmate
Discipline policy. The Bureau's policies constitute mandatory staff
procedures and guidance imposed by the Director. DHOs also receive
extensive training and continual guidance regarding imposition of
sanctions.
Comment: Possession of cell phones should be under Code 297 instead
of in the greatest severity category, unless the cell phone is used for
criminal activity.
Bureau response: The Bureau chooses to make possession of a
cellular telephone or other electronic device a Greatest level
prohibited act for the following reasons:
Rapid technological advances have resulted in smaller cell phones
which are easier to introduce into Bureau facilities. They may be
purchased with very little accountability at a very low cost by those
seeking to introduce them into Bureau facilities. Also, new wireless
communications devices are being introduced to the market with
increasing frequency, and are likewise small and easy to introduce.
This is causing an increase in the number of electronic devices being
introduced into Bureau facilities.
When the Bureau first began investigating the potential problem in
2003, we discovered that during that calendar year, institutions
reported confiscating 270 cellular telephones from inmates. At least
two inmates escaped from minimum security facilities while in
possession of cellular telephones. We therefore increased the severity
level for possession of a cellular telephone or other electronic device
to reflect the potential seriousness of the conduct, which may result
in aiding escape, continuing criminal activity, facilitating terrorism,
and a host of other potential threats to the safety, security, and
orderly operation of correctional facilities, and for the protection of
the public.
Other changes: The Bureau also makes the following minor changes to
the prohibited act codes to amend the parenthetical lists of examples
of contraband often found in inmates' possession:
Code 331 prohibits possession, manufacture, introduction, or loss
of a non-hazardous tool, equipment, supplies, or other non-hazardous
contraband. Following this prohibited act code in the table in Sec.
541.03, there is a parenthetical description listing examples of non-
hazardous contraband. We amend this list to include smoking apparatus
and tobacco in any form where prohibited, and unauthorized nutritional/
dietary supplements.
28 CFR 551.162(b)(2) indicates that Wardens may, with the Regional
Director's concurrence, prohibit inmate smoking other than for
authorized religious activities. We therefore make this conforming
amendment to clarify that smoking apparatus and tobacco are non-
hazardous contraband and are prohibited in institutions where Wardens
have prohibited inmate smoking.
We also include unauthorized nutritional/dietary supplements in the
list of examples of non-hazardous contraband for the following reasons:
The Bureau has been finding inmates in possession of various types of
herbal/dietary supplement items. However, these items do not fall under
the same Food and Drug Administration (FDA) rules and regulations,
including quality assurance measures, as medications. This has resulted
in negative health outcomes for those taking such herbal/dietary
supplements. These supplements have not passed through the same
rigorous trials as FDA-approved medication in regards to safety,
efficacy, adverse reactions, good manufacturing practices, etc.
The FDA has made several announcements regarding the dangerous
effects of dietary supplements. Some of these announcements, which can
be found at http://www.fda.gov, include warnings against ``nicotene
water,'' kava associated with severe liver injury, PC/SPES and SPES
(which contain the harmful compounds warfarin and alprazolam),
LipoKietix (which causes serious liver injuries), nettle (which has
high lead content), and many others. For these reasons, the Bureau has
determined that such items constitute non-hazardous contraband and are
unauthorized for possession by inmates.
Code 108 prohibits possession, manufacture, introduction, or loss
of a hazardous tool, and also gives a parenthetical list of examples of
hazardous tools. The list begins with a description of hazardous tools:
``tools most likely to be used in an escape or escape attempt or to
serve as weapons capable of doing serious bodily harm to others.'' We
amend this list to include body armor, maps, handmade rope, or other
escape paraphernalia. This adds more specificity to this prohibited act
code and serves to put inmates on greater notice of items considered
hazardous.
These are minor amendments to the parenthetical lists of examples
of contraband often found in inmates' possession. The lists of examples
are intended to be illustrative, not exhaustive.
Executive Order 12866
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review'', section
1(b), Principles of Regulation. The Director, Bureau of Prisons has
determined that this regulation is a ``significant regulatory action''
under Executive Order 12866, section 3(f), and accordingly this
regulation has been reviewed by the Office of Management and Budget.
Executive Order 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. Under Executive Order 13132, this
regulation does not have sufficient federalism implications for which
we would prepare a Federalism Assessment.
Regulatory Flexibility Act
The Director of the Bureau of Prisons, under the Regulatory
Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation. By
approving it, the Director certifies that it will not have a
significant economic impact upon a substantial number of small entities
because: This regulation is about the correctional management of
offenders committed to the custody of the Attorney General or the
Director of the Bureau of Prisons, and its economic impact is limited
to the Bureau's appropriated funds.
[[Page 76267]]
Unfunded Mandates Reform Act of 1995
This regulation will not cause State, local and Tribal governments,
or the private sector, to spend $100,000,000 or more in any one year,
and it will not significantly or uniquely affect small governments. We
do not need to take action under the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This regulation is not a major rule as defined by Sec. 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This
regulation will not result in an annual effect on the economy of
$100,000,000 or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
List of Subjects in 28 CFR Part 541
Prisoners.
Harley G. Lappin,
Director, Bureau of Prisons.
0
Under rulemaking authority vested in the Attorney General in 5 U.S.C.
301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of
Prisons, we amend 28 CFR part 541 as follows.
Subchapter C--Institutional Management
PART 541--INMATE DISCIPLINE AND SPECIAL HOUSING UNITS
0
1. Revise the authority citation for part 541 to read as follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042,
4081, 4082 (Repealed in part as to offenses committed on or after
November 1, 1987), 4161-4166 (Repealed as to offenses committed on
or after November 1, 1987), 5006-5024 (Repealed October 12, 1984 as
to offenses committed after that date), 5039; 28 U.S.C. 509, 510.
0
2. Revise Subpart A to Part 541 to read as follows:
Subpart A--Inmate Discipline Program
Sec.
541.1 Purpose.
541.2 Application.
541.3 Prohibited acts and available sanctions.
541.4 Loss of good conduct sentence credit as a mandatory sanction.
541.5 Discipline process.
541.6 Mentally ill inmates.
541.7 Unit Discipline Committee (UDC) review.
541.8 Discipline Hearing Officer (DHO) hearing.
Subpart A--Inmate Discipline Program
Sec. 541.1 Purpose.
This subpart describes the Federal Bureau of Prisons' (Bureau)
inmate discipline program. This program helps ensure the safety,
security, and orderly operation of correctional facilities, and the
protection of the public, by allowing Bureau staff to impose sanctions
on inmates who commit prohibited acts. Sanctions will not be imposed in
a capricious or retaliatory manner. The Bureau's inmate discipline
program is authorized by 18 U.S.C. 4042(a)(3).
Sec. 541.2 Application.
This program applies to sentenced and unsentenced inmates in Bureau
custody. It also applies to sentenced and unsentenced inmates
designated to any prison, institution, or facility in which persons are
held in custody by direction of, or under an agreement with, the Bureau
of Prisons.
Sec. 541.3 Prohibited acts and available sanctions.
(a) Prohibited acts. The list of prohibited acts are divided into
four separate categories based on severity: Greatest; High; Moderate;
and Low. We describe the prohibited acts in Table 1--Prohibited Acts
and Available Sanctions. Aiding, attempting, abetting, or making plans
to commit any of the prohibited acts is treated the same as committing
the act itself.
(b) Available sanctions. The list of available sanctions for
committing prohibited acts is listed in Table 1--Prohibited Acts and
Available Sanctions. If you commit repetitive prohibited acts, we can
impose increased sanctions, as listed in Table 2--Additional Available
Sanctions for Repeated Prohibited Acts Within the Same Severity Level.
Table 1--Prohibited Acts and Available Sanctions Greatest Severity Level
Prohibited Acts
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100................... Killing.
101................... Assaulting any person, or an armed assault on
the institution's secure perimeter (a charge
for assaulting any person at this level is to
be used only when serious physical injury has
been attempted or accomplished).
102................... Escape from escort; escape from any secure or
non-secure institution, including community
confinement; escape from unescorted community
program or activity; escape from outside a
secure institution.
103................... Setting a fire (charged with this act in this
category only when found to pose a threat to
life or a threat of serious bodily harm or in
furtherance of a prohibited act of Greatest
Severity, e.g., in furtherance of a riot or
escape; otherwise the charge is properly
classified Code 218, or 329).
104................... Possession, manufacture, or introduction of a
gun, firearm, weapon, sharpened instrument,
knife, dangerous chemical, explosive,
ammunition, or any instrument used as a weapon.
105................... Rioting.
106................... Encouraging others to riot.
107................... Taking hostage(s).
108................... Possession, manufacture, introduction, or loss
of a hazardous tool (tools most likely to be
used in an escape or escape attempt or to serve
as weapons capable of doing serious bodily harm
to others; or those hazardous to institutional
security or personal safety; e.g., hack-saw
blade, body armor, maps, handmade rope, or
other escape paraphernalia, portable telephone,
pager, or other electronic device).
109................... (Not to be used).
110................... Refusing to provide a urine sample; refusing to
breathe into a Breathalyzer; refusing to take
part in other drug-abuse testing.
111................... Introduction or making of any narcotics,
marijuana, drugs, alcohol, intoxicants, or
related paraphernalia, not prescribed for the
individual by the medical staff.
112................... Use of any narcotics, marijuana, drugs, alcohol,
intoxicants, or related paraphernalia, not
prescribed for the individual by the medical
staff.
113................... Possession of any narcotics, marijuana, drugs,
alcohol, intoxicants, or related paraphernalia,
not prescribed for the individual by the
medical staff.
114................... Sexual assault of any person, involving non-
consensual touching by force or threat of
force.
115................... Destroying and/or disposing of any item during a
search or attempt to search.
196................... Use of the mail for an illegal purpose or to
commit or further a Greatest category
prohibited act.
197................... Use of the telephone for an illegal purpose or
to commit or further a Greatest category
prohibited act.
[[Page 76268]]
198................... Interfering with a staff member in the
performance of duties most like another
Greatest severity prohibited act. This charge
is to be used only when another charge of
Greatest severity is not accurate. The
offending conduct must be charged as ``most
like'' one of the listed Greatest severity
prohibited acts.
199................... Conduct which disrupts or interferes with the
security or orderly running of the institution
or the Bureau of Prisons most like another
Greatest severity prohibited act. This charge
is to be used only when another charge of
Greatest severity is not accurate. The
offending conduct must be charged as ``most
like'' one of the listed Greatest severity
prohibited acts.
Available Sanctions for Greatest Severity Level Prohibited Acts
A..................... Recommend parole date rescission or retardation.
B..................... Forfeit and/or withhold earned statutory good
time or non-vested good conduct time (up to
100%) and/or terminate or disallow extra good
time (an extra good time or good conduct time
sanction may not be suspended).
B.1................... Disallow ordinarily between 50% and 75% (27-41
days) of good conduct time credit available for
year (a good conduct time sanction may not be
suspended).
C..................... Disciplinary segregation (up to 12 months).
D..................... Make monetary restitution.
E..................... Monetary fine.
F..................... Loss of privileges (e.g., visiting, telephone,
commissary, movies, recreation).
G..................... Change housing (quarters).
H..................... Remove from program and/or group activity.
I..................... Loss of job.
J..................... Impound inmate's personal property.
K..................... Confiscate contraband.
L..................... Restrict to quarters.
M..................... Extra duty.
High Severity Level Prohibited Acts
200................... Escape from a work detail, non-secure
institution, or other non-secure confinement,
including community confinement, with
subsequent voluntary return to Bureau of
Prisons custody within four hours.
201................... Fighting with another person.
202................... (Not to be used).
203................... Threatening another with bodily harm or any
other offense.
204................... Extortion; blackmail; protection; demanding or
receiving money or anything of value in return
for protection against others, to avoid bodily
harm, or under threat of informing.
205................... Engaging in sexual acts.
206................... Making sexual proposals or threats to another.
207................... Wearing a disguise or a mask.
208................... Possession of any unauthorized locking device,
or lock pick, or tampering with or blocking any
lock device (includes keys), or destroying,
altering, interfering with, improperly using,
or damaging any security device, mechanism, or
procedure.
209................... Adulteration of any food or drink.
210................... (Not to be used).
211................... Possessing any officer's or staff clothing.
212................... Engaging in or encouraging a group
demonstration.
213................... Encouraging others to refuse to work, or to
participate in a work stoppage.
214................... (Not to be used).
215................... (Not to be used).
216................... Giving or offering an official or staff member a
bribe, or anything of value.
217................... Giving money to, or receiving money from, any
person for the purpose of introducing
contraband or any other illegal or prohibited
purpose.
218................... Destroying, altering, or damaging government
property, or the property of another person,
having a value in excess of $100.00, or
destroying, altering, damaging life-safety
devices (e.g., fire alarm) regardless of
financial value.
219................... Stealing; theft (including data obtained through
the unauthorized use of a communications
device, or through unauthorized access to
disks, tapes, or computer printouts or other
automated equipment on which data is stored).
220................... Demonstrating, practicing, or using martial
arts, boxing (except for use of a punching
bag), wrestling, or other forms of physical
encounter, or military exercises or drill
(except for drill authorized by staff).
221................... Being in an unauthorized area with a person of
the opposite sex without staff permission.
222................... (Not to be used).
223................... (Not to be used).
224................... Assaulting any person (a charge at this level is
used when less serious physical injury or
contact has been attempted or accomplished by
an inmate).
225................... Stalking another person through repeated
behavior which harasses, alarms, or annoys the
person, after having been previously warned to
stop such conduct.
226................... Possession of stolen property.
227................... Refusing to participate in a required physical
test or examination unrelated to testing for
drug abuse (e.g., DNA, HIV, tuberculosis).
228................... Tattooing or self-mutilation.
229................... Sexual assault of any person, involving non-
consensual touching without force or threat of
force.
296................... Use of the mail for abuses other than criminal
activity which circumvent mail monitoring
procedures (e.g., use of the mail to commit or
further a High category prohibited act, special
mail abuse; writing letters in code; directing
others to send, sending, or receiving a letter
or mail through unauthorized means; sending
mail for other inmates without authorization;
sending correspondence to a specific address
with directions or intent to have the
correspondence sent to an unauthorized person;
and using a fictitious return address in an
attempt to send or receive unauthorized
correspondence).
297................... Use of the telephone for abuses other than
illegal activity which circumvent the ability
of staff to monitor frequency of telephone use,
content of the call, or the number called; or
to commit or further a High category prohibited
act.
298................... Interfering with a staff member in the
performance of duties most like another High
severity prohibited act. This charge is to be
used only when another charge of High severity
is not accurate. The offending conduct must be
charged as ``most like'' one of the listed High
severity prohibited acts.
[[Page 76269]]
299................... Conduct which disrupts or interferes with the
security or orderly running of the institution
or the Bureau of Prisons most like another High
severity prohibited act. This charge is to be
used only when another charge of High severity
is not accurate. The offending conduct must be
charged as ``most like'' one of the listed High
severity prohibited acts.
Available Sanctions for High Severity Level Prohibited Acts
A..................... Recommend parole date rescission or retardation.
B..................... Forfeit and/or withhold earned statutory good
time or non-vested good conduct time up to 50%
or up to 60 days, whichever is less, and/or
terminate or disallow extra good time (an extra
good time or good conduct time sanction may not
be suspended).
B.1................... Disallow ordinarily between 25% and 50% (14-27
days) of good conduct time credit available for
year (a good conduct time sanction may not be
suspended).
C..................... Disciplinary segregation (up to 6 months).
D..................... Make monetary restitution.
E..................... Monetary fine.
F..................... Loss of privileges (e.g., visiting, telephone,
commissary, movies, recreation).
G..................... Change housing (quarters).
H..................... Remove from program and/or group activity.
I..................... Loss of job.
J..................... Impound inmate's personal property.
K..................... Confiscate contraband.
L..................... Restrict to quarters.
M..................... Extra duty.
Moderate Severity Level Prohibited Acts
300.................. Indecent Exposure.
301................... (Not to be used).
302................... Misuse of authorized medication.
303................... Possession of money or currency, unless
specifically authorized, or in excess of the
amount authorized.
304................... Loaning of property or anything of value for
profit or increased return.
305................... Possession of anything not authorized for
retention or receipt by the inmate, and not
issued to him through regular channels.
306................... Refusing to work or to accept a program
assignment.
307................... Refusing to obey an order of any staff member
(may be categorized and charged in terms of
greater severity, according to the nature of
the order being disobeyed, e.g., failure to
obey an order which furthers a riot would be
charged as 105, Rioting; refusing to obey an
order which furthers a fight would be charged
as 201, Fighting; refusing to provide a urine
sample when ordered as part of a drug-abuse
test would be charged as 110).
308................... Violating a condition of a furlough.
309................... Violating a condition of a community program.
310................... Unexcused absence from work or any program
assignment.
311................... Failing to perform work as instructed by the
supervisor.
312................... Insolence towards a staff member.
313................... Lying or providing a false statement to a staff
member.
314................... Counterfeiting, forging, or unauthorized
reproduction of any document, article of
identification, money, security, or official
paper (may be categorized in terms of greater
severity according to the nature of the item
being reproduced, e.g., counterfeiting release
papers to effect escape, Code 102).
315................... Participating in an unauthorized meeting or
gathering.
316................... Being in an unauthorized area without staff
authorization.
317................... Failure to follow safety or sanitation
regulations (including safety regulations,
chemical instructions, tools, MSDS sheets, OSHA
standards).
318................... Using any equipment or machinery without staff
authorization.
319................... Using any equipment or machinery contrary to
instructions or posted safety standards.
320................... Failing to stand count.
321................... Interfering with the taking of count.
322................... (Not to be used).
323................... (Not to be used).
324................... Gambling.
325................... Preparing or conducting a gambling pool.
326................... Possession of gambling paraphernalia.
327................... Unauthorized contacts with the public.
328................... Giving money or anything of value to, or
accepting money or anything of value from,
another inmate or any other person without
staff authorization.
329................... Destroying, altering, or damaging government
property, or the property of another person,
having a value of $100.00 or less.
330................... Being unsanitary or untidy; failing to keep
one's person or quarters in accordance with
posted standards.
331................... Possession, manufacture, introduction, or loss
of a non-hazardous tool, equipment, supplies,
or other non-hazardous contraband (tools not
likely to be used in an escape or escape
attempt, or to serve as a weapon capable of
doing serious bodily harm to others, or not
hazardous to institutional security or personal
safety) (other non-hazardous contraband
includes such items as food, cosmetics,
cleaning supplies, smoking apparatus and
tobacco in any form where prohibited, and
unauthorized nutritional/dietary supplements).
332................... Smoking where prohibited.
333................... Fraudulent or deceptive completion of a skills
test (e.g., cheating on a GED, or other
educational or vocational skills test).
334................... Conducting a business; conducting or directing
an investment transaction without staff
authorization.
335................... Communicating gang affiliation; participating in
gang related activities; possession of
paraphernalia indicating gang affiliation.
336................... Circulating a petition.
396................... Use of the mail for abuses other than criminal
activity which do not circumvent mail
monitoring; or use of the mail to commit or
further a Moderate category prohibited act.
397................... Use of the telephone for abuses other than
illegal activity which do not circumvent the
ability of staff to monitor frequency of
telephone use, content of the call, or the
number called; or to commit or further a
Moderate category prohibited act.
[[Page 76270]]
398................... Interfering with a staff member in the
performance of duties most like another
Moderate severity prohibited act. This charge
is to be used only when another charge of
Moderate severity is not accurate. The
offending conduct must be charged as ``most
like'' one of the listed Moderate severity
prohibited acts.
399................... Conduct which disrupts or interferes with the
security or orderly running of the institution
or the Bureau of Prisons most like another
Moderate severity prohibited act. This charge
is to be used only when another charge of
Moderate severity is not accurate. The
offending conduct must be charged as ``most
like'' one of the listed Moderate severity
prohibited acts.
Available Sanctions for Moderate Severity Level Prohibited Acts
A.................... Recommend parole date rescission or retardation.
B..................... Forfeit and/or withhold earned statutory good
time or non-vested good conduct time up to 25%
or up to 30 days, whichever is less, and/or
terminate or disallow extra good time (an extra
good time or good conduct time sanction may not
be suspended).
B.1................... Disallow ordinarily up to 25% (1-14 days) of
good conduct time credit available for year (a
good conduct time sanction may not be
suspended).
C..................... Disciplinary segregation (up to 3 months).
D..................... Make monetary restitution.
E..................... Monetary fine.
F..................... Loss of privileges (e.g., visiting, telephone,
commissary, movies, recreation).
G..................... Change housing (quarters).
H..................... Remove from program and/or group activity.
I..................... Loss of job.
J..................... Impound inmate's personal property.
K..................... Confiscate contraband.
L..................... Restrict to quarters.
M..................... Extra duty.
Low Severity Level Prohibited Acts
400.................. (Not to be used).
401................... (Not to be used).
402................... Malingering, feigning illness.
403................... (Not to be used).
404................... Using abusive or obscene language.
405................... (Not to be used).
406................... (Not to be used).
407................... Conduct with a visitor in violation of Bureau
regulations.
408................... (Not to be used).
409................... Unauthorized physical contact (e.g., kissing,
embracing).
498................... Interfering with a staff member in the
performance of duties most like another Low
severity prohibited act. This charge is to be
used only when another charge of Low severity
is not accurate. The offending conduct must be
charged as ``most like'' one of the listed Low
severity prohibited acts.
499................... Conduct which disrupts or interferes with the
security or orderly running of the institution
or the Bureau of Prisons most like another Low
severity prohibited act. This charge is to be
used only when another charge of Low severity
is not accurate. The offending conduct must be
charged as ``most like'' one of the listed Low
severity prohibited acts.
Available Sanctions for Low Severity Level Prohibited Acts
B.1................... Disallow ordinarily up to 12.5% (1-7 days) of
good conduct time credit available for year (to
be used only where inmate found to have
committed a second violation of the same
prohibited act within 6 months); Disallow
ordinarily up to 25% (1-14 days) of good
conduct time credit available for year (to be
used only where inmate found to have committed
a third violation of the same prohibited act
within 6 months) (a good conduct time sanction
may not be suspended).
D..................... Make monetary restitution.
E..................... Monetary fine.
F..................... Loss of privileges (e.g., visiting, telephone,
commissary, movies, recreation).
G..................... Change housing (quarters).
H..................... Remove from program and/or group activity.
I..................... Loss of job.
J..................... Impound inmate's personal property.
K..................... Confiscate contraband.
L..................... Restrict to quarters.
M..................... Extra duty.
------------------------------------------------------------------------
Table 2--Additional Available Sanctions for Repeated Prohibited Acts Within the Same Severity Level
----------------------------------------------------------------------------------------------------------------
Time period for
Prohibited act severity level prior offense (same Frequency of Additional available sanctions
code) repeated offense
----------------------------------------------------------------------------------------------------------------
Low Severity (400 level)......... 6 months............ 2nd offense........ 1. Disciplinary segregation (up to
1 month).
2. Forfeit earned SGT or non-
vested GCT up to 10% or up to 15
days, whichever is less, and/or
terminate or disallow extra good
time (EGT) (an EGT sanction may
not be suspended).
3rd or more offense Any available Moderate severity
level sanction (300 series).
Moderate Severity (300 level).... 12 months........... 2nd offense........ 1. Disciplinary segregation (up to
6 months).
[[Page 76271]]
2. Forfeit earned SGT or non-
vested GCT up to 37\1/2\% or up
to 45 days, whichever is less,
and/or terminate or disallow EGT
(an EGT sanction may not be
suspended).
3rd or more Any available High severity level
offense. sanction (200 series).
High Severity (200 level)........ 18 months........... 2nd offense........ 1. Disciplinary segregation (up to
12 months).
2. Forfeit earned SGT or non-
vested GCT up to 75% or up to 90
days, whichever is less, and/or
terminate or disallow EGT (an EGT
sanction may not be suspended).
3rd or more offense Any available Greatest severity
level sanction (100 series).
Greatest Severity (100 level).... 24 months........... 2nd or more offense Disciplinary Segregation (up to 18
months).
----------------------------------------------------------------------------------------------------------------
Sec. 541.4 Loss of good conduct sentence credit as a mandatory
sanction.
(a) You will lose good conduct sentence credit as a mandatory
disciplinary sanction if you are in one of the following two groups:
(1) VCCLEA-violent inmates. The date of your U.S. Code offense was
on or after September 13, 1994, but before April 26, 1996, and you
committed a ``crime of violence'' as defined by the Violent Crime
Control and Law Enforcement Act of 1994 (VCCLEA); or
(2) PLRA inmates and DC Code offenders. The date of your U.S. Code
offense was on or after April 26, 1996, and, therefore, under the
Prison Litigation Reform Act (PLRA), or the date of your District of
Columbia (DC) Code offense was on or after August 5, 2000.
(b) If you are an inmate in one of the above groups and commit a
prohibited act, you will lose good conduct sentence credit as a
mandatory disciplinary sanction. The amount of good conduct sentence
credit you will lose depends on the severity level of the prohibited
act(s) committed, as follows:
(1) Greatest Severity Level Offenses. You will lose at least 41
days, or 75% of available credit if less than 54 days are available for
the prorated period, for each act committed.
(2) High Severity Level Offenses. You will lose at least 27 days,
or 50% of available credit if less than 54 days are available for the
prorated period, for each act committed.
(3) Moderate Severity Level Offenses. You will lose at least 14
days, or 25% of available credit if less than 54 days are available for
the prorated period, after committing two or more Moderate severity
acts during the current year of your good conduct sentence credit
availability.
(4) Low Severity Level Offenses. You will lose at least 7 days, or
12.5% of available credit if less than 54 days are available for the
prorated period, after committing three or more Low severity acts
during the current year of your good conduct sentence credit
availability.
Sec. 541.5 Discipline process.
(a) Incident report. The discipline process starts when staff
witness or reasonably believe that you committed a prohibited act. A
staff member will issue you an incident report describing the incident
and the prohibited act(s) you are charged with committing. You will
ordinarily receive the incident report within 24 hours of staff
becoming aware of your involvement in the incident.
(b) Investigation. After you receive an incident report, a Bureau
staff member will investigate it.
(1) Information: The investigator will specifically inform you:
(A) of the charge(s) against you; and
(B) that you may remain silent at all stages of the discipline
process, but that your silence may be used to draw an adverse inference
against you at any stage of the process. Your silence alone, however,
cannot be the basis for finding you committed the prohibited act(s).
(2) Statement: When the investigator asks for your statement, you
may give an explanation of the incident, request any witnesses be
interviewed, or request that other evidence be obtained and reviewed.
However, the staff investigation of the incident report may be
suspended before requesting your statement if it is being investigated
for possible criminal prosecution.
(3) Informally resolving the incident report. The incident report
may be informally resolved at any stage of the disciplinary process,
except for prohibited acts in the Greatest and High severity levels, or
as otherwise required by law or these regulations. If the incident
report is informally resolved, it will be removed from your records.
Sec. 541.6 Mentally ill inmates.
If it appears you are mentally ill at any stage of the discipline
process, you will be examined by mental health staff.
(a) Competency to Participate in Disciplinary Proceedings. If
evidence indicates that you cannot understand the nature of the
disciplinary proceedings, or cannot help in your own defense,
disciplinary proceedings may be postponed until you are competent to
participate. The Unit Disciplinary Committee or Discipline Hearing
Officer will make this decision based on evidence, including evidence
presented by mental health staff.
(b) Responsibility for Conduct. You will not be disciplined for
conduct committed when, as the result of a severe mental disease or
defect, you were unable to appreciate the nature and quality, or
wrongfulness of the act. The UDC or DHO will make this decision based
on evidence, including evidence presented by mental health staff.
Sec. 541.7 Unit Discipline Committee (UDC) review of the incident
report.
A Unit Discipline Committee (UDC) will review the incident report
once the staff investigation is complete. The UDC's review involves the
following:
(a) Available dispositions. The UDC will make one of the following
decisions after reviewing the incident report:
[[Page 76272]]
(1) You committed the prohibited act(s) charged, and/or a similar
prohibited act(s) as described in the incident report;
(2) You did not commit the prohibited act(s) charged; or
(3) The incident report will be referred to the Discipline Hearing
Officer (DHO) for further review, based on the seriousness of the
prohibited act(s) charged.
(4) If you are charged with a Greatest or High severity prohibited
act, or are an inmate covered by Sec. 541.04, the UDC will
automatically refer the incident report to the DHO for further review.
(b) UDC members. The UDC ordinarily consists of two or more staff.
UDC members will not be victims, witnesses, investigators, or otherwise
significantly involved in the incident.
(c) Timing. The UDC will ordinarily review the incident report
within five work days after it is issued, not counting the day it was
issued, weekends, and holidays. UDC review of the incident report may
also be suspended if it is being investigated for possible criminal
prosecution.
(d) Inmate appearance. You are permitted to appear before the UDC
during its review of the incident report, except during UDC
deliberations or when your presence would jeopardize institution
security, at the UDC's discretion. Also:
(1) You may appear either in person or electronically (for example,
by video or telephone conferencing) at the UDC's discretion.
(2) You may waive your appearance before the UDC. If you waive your
appearance, the UDC will review the incident report in your absence.
(3) If you escape or are otherwise absent from custody, the UDC
will conduct a review in your absence at the institution where you were
last confined.
(e) Evidence. You are entitled to make a statement and present
documentary evidence to the UDC on your own behalf. The UDC will
consider all evidence presented during its review. The UDC's decision
will be based on at least some facts and, if there is conflicting
evidence, on the greater weight of the evidence.
(f) Sanctions. If you committed a prohibited act(s), the UDC can
impose any of the available sanctions listed in Tables 1 and 2, except
loss of good conduct sentence credit, disciplinary segregation, or
monetary fines.
(g) Referral to the DHO. If the UDC refers the incident report to
the DHO for further review, the UDC will advise you of your rights at
the upcoming DHO hearing, as detailed in Sec. 541.08.
(h) Written report. You will receive a written copy of the UDC's
decision following its review of the incident report.
(i) Appeals. You may appeal the UDC's action(s) through the
Administrative Remedy Program, 28 CFR part 542, subpart B.
Sec. 541.8 Discipline Hearing Officer (DHO) hearing.
The Discipline Hearing Officer (DHO) will only conduct a hearing on
the incident report if referred by the UDC. The DHO's hearing involves
the following:
(a) Available dispositions. The DHO will make one of the following
decisions after a hearing on the incident report:
(1) You committed the prohibited act(s) charged, and/or a similar
prohibited act(s) as described in the incident report;
(2) You did not commit the prohibited act(s) charged; or
(3) The incident report will be referred back for further
investigation, review, and disposition.
(b) Discipline Hearing Officer. The DHO will be an impartial
decision maker who was not a victim, witness, investigator, or
otherwise significantly involved in the incident.
(c) Timing. You will receive written notice of the charge(s)
against you at least 24 hours before the DHO's hearing. You may waive
this requirement, in which case the DHO's hearing can be conducted
sooner.
(d) Staff Representative. You are entitled to have a staff
representative during the DHO hearing process as follows:
(1) How to get a staff representative. You may request the staff
representative of your choice, so long as that person was not a victim,
witness, investigator, or otherwise significantly involved in the
incident. If your request(s) cannot be fulfilled, and you still want a
staff representative, the Warden will appoint one. The Warden will also
appoint a staff representative if it appears you are unable to
adequately represent yourself before the DHO, for example, if you are
illiterate or have difficulty understanding the charges against you.
(2) How the staff representative will help you. Prior to the DHO's
hearing, the staff representative will be available to help you
understand the incident report charges and potential consequences. The
staff representative may also assist you by speaking with and
scheduling witnesses, obtaining written statements, and otherwise
helping you prepare evidence for presentation at the DHO's hearing.
During the DHO's hearing, you are entitled to have the staff
representative appear and assist you in understanding the proceedings.
The staff representative can also assist you in presenting evidence
during the DHO's hearing.
(3) How the staff representative may appear. Your staff
representative may appear either in person or electronically (for
example, by video or telephone conferencing) at the DHO's discretion.
If your staff representative is not available for the scheduled
hearing, you may either select another staff representative, request
the hearing be postponed for a reasonable amount of time until your
staff representative can appear, or proceed without a staff
representative.
(e) Inmate appearance. You are permitted to appear before the DHO
during the hearing on the incident report as follows:
(1) You may appear either in person or electronically (for example,
by video or telephone conferencing), at the DHO's discretion.
(2) Your appearance may be prohibited during DHO deliberations or
when your presence would jeopardize institution security, at the DHO's
discretion.
(3) You may waive your appearance before the DHO. If you waive your
appearance, the DHO hearing will be conducted in your absence.
(4) If you escape or are otherwise absent from custody, the DHO
will conduct a hearing in your absence at the institution where you
were last confined.
(f) Evidence and witnesses. You are entitled to make a statement
and present documentary evidence to the DHO on your own behalf. The DHO
will consider all evidence presented during the hearing. The DHO's
decision will be based on at least some facts and, if there is
conflicting evidence, on the greater weight of the evidence. Witnesses
may appear at the DHO's hearing as follows:
(1) Witnesses may appear before the DHO either in person or
electronically (for example, by video or telephone conferencing) at the
DHO's discretion.
(2) The DHO will call witnesses who have information directly
relevant to the charge(s) and who are reasonably available. However,
the DHO need not call witnesses adverse to you if their testimony is
adequately summarized in the incident report or other investigation
materials.
(3) You or your staff representative may request witnesses appear
at the hearing to testify on your behalf. Your requested witnesses may
not appear if, in the DHO's discretion, they are not reasonably
available, their presence at the hearing would jeopardize institution
[[Page 76273]]
security, or they would present repetitive evidence.
(4) If your requested witnesses are unavailable to appear, written
statements can be requested by either the DHO or staff representative.
The written statements can then be considered during the DHO's hearing.
(5) Only the DHO may directly question witnesses at the DHO's
hearing. Any questions by you or your staff representative must be
submitted to the DHO, who will present the question to the witness in
his/her discretion.
(6) The DHO may consider evidence provided by a confidential
informant (CI) that the DHO finds reliable. You will not be informed of
the CI's identity. You will be informed of the CI's testimony to the
extent it will not jeopardize institution security, at the DHO's
discretion.
(g) Sanctions. If you committed a prohibited act(s), the DHO can
impose any of the available sanctions listed in Tables 1 and 2.
(h) Written Report. You will receive a written copy of the DHO's
decision following the hearing. The DHO is not required to prepare a
verbatim record of the hearing. The DHO's written report will document
the following:
(1) Whether you were advised of your rights during the DHO process;
(2) The evidence relied on by the DHO;
(3) The DHO's decision;
(4) The sanction imposed by the DHO; and
(5) The reason(s) for the sanction(s) imposed.
(i) Appeals. You may appeal the DHO's action(s) through the
Administrative Remedy Program, 28 CFR part 542, subpart B.
0
3. Revise subpart B to read as follows:
Subpart B--Special Housing Units
Sec.
541.20 Purpose.
541.21 Special Housing Units (SHUs).
541.22 Status when placed in the SHU.
541.23 Administrative detention status.
541.24 Disciplinary segregation status.
541.25 Notice received when placed in the SHU.
541.26 Review of placement in the SHU.
541.27 Protection case--placement in Administrative Detention
Status.
541.28 Protection case-review of placement in the SHU.
541.29 Staff verification of need for protection.
541.30 Lack of verification of need for protection.
541.31 Conditions of confinement in the SHU.
541.32 Medical and mental health care in the SHU.
541.33 Release from the SHU.
Subpart B--Special Housing Units
Sec. 541.20 Purpose.
This subpart describes the Federal Bureau of Prisons' (Bureau)
operation of special housing units (SHU) at Bureau institutions. The
Bureau's operation of SHUs is authorized by 18 U.S.C. 4042(a)(2) and
(3).
Sec. 541.21 Special Housing Units (SHUs).
Special Housing Units (SHUs) are housing units in Bureau
institutions where inmates are securely separated from the general
inmate population, and may be housed either alone or with other
inmates. Special housing units help ensure the safety, security, and
orderly operation of correctional facilities, and protect the public,
by providing alternative housing assignments for inmates removed from
the general population.
Sec. 541.22 Status when placed in the SHU.
When placed in the SHU, you are either in administrative detention
status or disciplinary segregation status.
(a) Administrative detention status. Administrative detention
status is an administrative status which removes you from the general
population when necessary to ensure the safety, security, and orderly
operation of correctional facilities, or protect the public.
Administrative detention status is non-punitive, and can occur for a
variety of reasons.
(b) Disciplinary segregation status. Disciplinary segregation
status is a punitive status imposed only by a Discipline Hearing
Officer (DHO) as a sanction for committing a prohibited act(s).
Sec. 541.23 Administrative detention status.
You may be placed in administrative detention status for the
following reasons:
(a) Pending Classification or Reclassification. You are a new
commitment pending classification or under review for Reclassification.
(b) Holdover Status. You are in holdover status during transfer to
a designated institution or other destination.
(c) Removal from general population. Your presence in the general
population poses a threat to life, property, self, staff, other
inmates, the public, or to the security or orderly running of the
institution and:
(1) Investigation. You are under investigation or awaiting a
hearing for possibly violating a Bureau regulation or criminal law;
(2) Transfer. You are pending transfer to another institution or
location;
(3) Protection cases. You requested, or staff determined you need,
administrative detention status for your own protection.
(4) Post-disciplinary detention. You are ending confinement in
disciplinary segregation status, and your return to the general
population would threaten the safety, security, and orderly operation
of a correctional facility, or public safety.
Sec. 541.24 Disciplinary segregation status.
You may be placed in disciplinary segregation status only by the
DHO as a disciplinary sanction.
Sec. 541.25 Notice received when placed in the SHU.
You will be notified of the reason(s) you are placed in the SHU as
follows:
(a) Administrative detention status. When placed in administrative
detention status, you will receive a copy of the administrative
detention order, ordinarily within 24 hours, detailing the reason(s)
for your placement. However, when placed in administrative detention
status pending classification or while in holdover status, you will not
receive an administrative detention order.
(b) Disciplinary segregation status. When you are to be placed in
disciplinary segregation status as a sanction for violating Bureau
regulations, you will be informed by the DHO at the end of your
discipline hearing.
Sec. 541.26 Review of placement in the SHU.
Your placement in the SHU will be reviewed by the Segregation
Review Official (SRO) as follows:
(a) Three day review. Within three work days of your placement in
administrative detention status, not counting the day you were
admitted, weekends, and holidays, the SRO will review the supporting
records. If you are in disciplinary segregation status, this review
will not occur.
(b) Seven day reviews. Within seven continuous calendar days of
your placement in either administrative detention or disciplinary
segregation status, the SRO will formally review your status at a
hearing you can attend. Subsequent reviews of your records will be
performed in your absence by the SRO every seven continuous calendar
days thereafter.
(c) Thirty day reviews. After every 30 calendar days of continuous
placement in either administrative detention or disciplinary
segregation status, the SRO will formally review your status at a
hearing you can attend.
(d) Administrative remedy program. You can submit a formal
grievance
[[Page 76274]]
challenging your placement in the SHU through the Administrative Remedy
Program, 28 CFR part 542, subpart B.
Sec. 541.27 Protection case--placement in Administrative Detention
status.
You may be placed in administrative detention status as a
protection case in the following circumstances.
(a) Victim of inmate assault or threats. You were the victim of an
inmate assault, or are being threatened by other inmates, including
threats of harm if you do not act in a certain way, for example,
threats of harm unless you engage in sexual activity.
(b) Inmate informant. Your safety is threatened because you
provided, or are perceived as having provided, information to staff or
law enforcement authorities regarding other inmates or persons in the
community.
(c) Inmate refusal to enter general population. You refuse to enter
the general population because of alleged pressures or threats from
unidentified inmates, or for no expressed reason.
(d) Staff concern. Based on evidence, staff believe your safety may
be seriously jeopardized by placement in the general population.
Sec. 541.28 Protection case--review of placement in the SHU.
(a) Staff investigation. Whenever you are placed in the SHU as a
protection case, whether requested by you or staff, an investigation
will occur to verify the reasons for your placement.
(b) Hearing. You will receive a hearing according to the procedural
requirements of Sec. 541.26(b) within seven calendar days of your
placement. Additionally, if you feel at any time your placement in the
SHU as a protection case is unnecessary, you may request a hearing
under this section.
(c) Periodic review. If you remain in administrative detention
status following such a hearing, you will be periodically reviewed as
an ordinary administrative detention case under Sec. 541.26.
Sec. 541.29 Staff verification of need for protection.
If a staff investigation verifies your need for placement in the
SHU as a protection case, you may remain in the SHU or be transferred
to another institution where your status as a protection case may not
be necessary, at the Warden's discretion.
Sec. 541.30 Lack of verification of need for protection.
If a staff investigation fails to verify your need for placement in
the SHU as a protection case, you will be instructed to return to the
general population. If you refuse to return to the general population
under these circumstances, you may be subject to disciplinary action.
Sec. 541.31 Conditions of confinement in the SHU.
Your living conditions in the SHU will meet or exceed standards for
healthy and humane treatment, including, but not limited to, the
following specific conditions:
(a) Environment. Your living quarters will be well-ventilated,
adequately lighted, appropriately heated, and maintained in a sanitary
condition.
(b) Cell Occupancy. Your living quarters will ordinarily house only
the amount of occupants for which it is designed. The Warden, however,
may authorize more occupants so long as adequate standards can be
maintained.
(c) Clothing. You will receive adequate institution clothing,
including footwear, while housed in the SHU. You will be provided
necessary opportunities to exchange clothing and/or have it washed.
(d) Bedding. You will receive a mattress, blankets, a pillow, and
linens for sleeping. You will receive necessary opportunities to
exchange linens.
(e) Food. You will receive nutritionally adequate meals.
(f) Personal hygiene. You will have access to a wash basin and
toilet. You will receive personal items necessary to maintain an
acceptable level of personal hygiene, for example, toilet tissue, soap,
toothbrush and cleanser, shaving utensils, etc. You will ordinarily
have an opportunity to shower and shave at least three times per week.
You will have access to hair care services as necessary.
(g) Exercise. You will receive the opportunity to exercise outside
your individual quarters at least five hours per week, ordinarily on
different days in one-hour periods. You can be denied these exercise
periods for a week at a time by order of the Warden if it is determined
that your use of exercise privileges threatens safety, security, and
orderly operation of a correctional facility, or public safety.
(h) Personal property. In either status, your amount of personal
property may be limited for reasons of fire safety or sanitation.
(1) In administrative detention status you are ordinarily allowed a
reasonable amount of personal property and reasonable access to the
commissary.
(2) In disciplinary segregation status your personal property will
be impounded, with the exception of limited reading/writing materials,
and religious articles. Also, your commissary privileges may be
limited.
(i) Correspondence. You will receive correspondence privileges
according to part 540, subpart B.
(j) Telephone. You will receive telephone privileges according to
part 540, subpart I.
(k) Visiting. You will receive visiting privileges according to
part 540, subpart D.
(l) Legal Activities. You will receive an opportunity to perform
personal legal activities according to part 543, subpart B.
(m) Staff monitoring. You will be monitored by staff assigned to
the SHU, including program and unit team staff.
(n) Programming Activities. In administrative detention status, you
will have access to programming activities to the extent safety,
security, orderly operation of a correctional facility, or public
safety are not jeopardized. In disciplinary segregation status, your
participation in programming activities, e.g., educational programs,
may be suspended.
(o) Administrative remedy program. You can submit a formal
grievance challenging any aspect of your confinement in the SHU through
the Administrative Remedy Program, 28 CFR part 542, subpart B.
Sec. 541.32 Medical and mental health care in the SHU.
(a) Medical Care. A health services staff member will visit you
daily to provide necessary medical care. Emergency medical care is
always available.
(b) Mental Health Care. After every 30 calendar days of continuous
placement in either administrative detention or disciplinary
segregation status, mental health staff will examine you, including a
personal interview. Emergency mental health care is always available.
Sec. 541.33 Release from the SHU.
(a) Administrative detention status. You will be released from
administrative detention status when the reasons for your placement no
longer exist.
(b) Disciplinary segregation status. You will be released from
disciplinary segregation status after satisfying the sanction imposed
by the DHO. The SRO may release you earlier if it is determined you no
longer require disciplinary segregation status.
[FR Doc. 2010-30525 Filed 12-7-10; 8:45 am]
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